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Allahabad High Court · body

2009 DIGILAW 2554 (ALL)

Ram Yagya Saroj v. State of U. P.

2009-07-14

SHABIHUL HASNAIN

body2009
JUDGMENT Shabihul Hasnain, J.—Heard Sri R. B. S. Rathore, learned counsel for the petitioner and learned standing counsel for the opposite parties. 2. The petitioner who was constable in Civil Police has been dismissed from service vide order dated 14.2.2007, passed by Superintendent of Police, Sultanpur under Rule 8 (2) (b) of the U. P. Police Officers and the Subordinate Ranks (Punishment and Appeal) Rules, 1991. 3. The petitioner has challenged this dismissal order mainly on the ground that the aforementioned rules were not applicable in the circumstances of the case in question. It is necessary to see under what circumstances the impugned order has been passed by the Superintendent of Police, Sultanpur, briefly stated facts are as below : 4. The petitioner, when he was posted at district Sultanpur in the year 2007, was directed by the Superintendent of Police, Sultanpur to proceed for election duties vide order dated 12.2.2007. The petitioner was supposed to attend the duty for the State Assembly Elections, 2007 in Uttaranchal and further it was expected that he will leave alongwith other colleagues at 7 O’Clock in the morning on 14.2.2007. It is alleged that the petitioner absented himself from duty without any information and went on unauthorized leave on 13.2.2007 itself. The petitioner although being in a disciplined force did not think it proper to even inform the authorities and moved from his place of posting without any information whatsoever. This irresponsible action was held to be sufficient cause for passing the dismissal order of the petitioner’s service by the Superintendent of Police. 5. The dismissal order was passed on 14.2.2007 stating therein that the action of the petitioner is an indication of grave negligence, disinterest, dereliction of duty and indisciplined behavior. The order further states that the action of the petitioner indicates that he wants to work according to his own sweet will and hence, there is no place for such person in a disciplined force like police. The order further goes to state that under these circumstances the Superintendent of Police is satisfied that an enquiry is not expedient in this case and the services have to be dispensed with under the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991. Consequently, the petitioner was dismissed from service w.e.f. 14.2.2007 the date of the passing of the order. 6. Consequently, the petitioner was dismissed from service w.e.f. 14.2.2007 the date of the passing of the order. 6. The petitioner preferred an appeal against the aforesaid dismissal order which was decided on 17.11.2007 and further a revision filed against the appeal was also decided on 12.8.2008. The petitioner has asked for the quashing of these aforesaid orders also. The perusal of the rejection order of the appeal goes to show that the appellant/petitioner had stated a few factual aspects of the case and had requested that the dismissal order be set aside but the dismissal order was upheld by the Appellate Authority after considering the case of the petitioner/appellant. Without going into those considerations it will be sufficient to point out that the Appellate Authority has although decided all the objections raised by the petitioner but still the main question was not answered by the Appellate Authority as to why and under what circumstances the Superintendent of Police came to the conclusion that enquiry in this case was not possible. Similarly the revision has also been dismissed without deciding the question of applicability of Rule 8 (2) (b) of the aforesaid Rules. 7. On consideration of the whole facts of the case it appears that the crux lies in answering the main question raised by the learned counsel for the petitioner whether Rule 8 (2) (b) of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 will be attracted in the case of the petitioner or not. 8. The services of the petitioner had been dismissed under Rule 8 (2) (b) of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991. Rule 8 (2) (b) reads as under : “8 (2) (b) Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry.” 9. The language of the aforesaid rule is similar to the second proviso to Article 311 (2) of the Constitution of India. In Union of India and another v. Tulsiram Patel, AIR 1985 SC 1416 , the Supreme Court held : 10. The language of the aforesaid rule is similar to the second proviso to Article 311 (2) of the Constitution of India. In Union of India and another v. Tulsiram Patel, AIR 1985 SC 1416 , the Supreme Court held : 10. The conditions precedent for the application of Clause (b) the satisfaction of the disciplinary authority that “it is not reasonably practicable to hold” the inquiry contemplated by Clause (2) of Article 311… 11. Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability, which is required by Clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. 12. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. 13. A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department’s case against the Government servant is weak and must fail. 14. In Tulsiram Patel’s case (supra) the Supreme Court further held : “The second condition necessary for the valid application of Clause (b) of the second proviso is that the disciplinary authority should record in writing the inquiry contemplated by Article 311 (2). This is a constitutional obligation and if such reason is not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional. It is obvious that the recording in writing of the reason for dispensing with the inquiry must precede the order imposing the penalty.” The Supreme Court further went on to say : “If the Court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by Clause (b) and would take the case out of the purview of that clause and impugned order of penalty would stand invalidated.” 15. In Chief Security Officer and others v. Singasan Rabi Das, 1991 (1) SCC 729 , the Supreme Court held that there was a total absence of sufficient material of good ground for dispensing with the inquiry and accordingly held that the order of termination dispensing with the inquiry was illegal. 16. In Jaswant Singh v. State of Punjab and others, (1991) 1 SCC 362 , the Supreme Court held : “It was incumbent on the respondents to disclose to the Court the material in existence at the date of the passing of the impugned order in support of the subjective satisfaction recorded by respondent No. 3, in the impugned order. Clause (b) of the second proviso to Article 311 (2) can be invoked only when the authority is satisfied from the material placed before him that it is not reasonably practicable to hold a departmental inquiry.” The Supreme Court further held : “The decision to dispense with the departmental inquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority is questioned in a Court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim of caprice of the concerned officer.” 17. In view of the aforesaid, I am of the opinion that the impugned order of termination does not contain sufficient reasons for dispensing with the inquiry. The charges so levelled are such, that it can easily be inquired through a departmental enquiry. It is not a case where it could be said that it was not reasonably practicable to hold an enquiry. The reasons given for dispensing with the enquiry are wholly arbitrary and irrelevant. I am of the view that the disciplinary authority has misused its powers. Similar view was taken in Dharam Pal Singh v. State of U. P. and others, 2005 (1) ESC 566 : 2005 (5) AWC 3993. 18. In my opinion, the charge against the petitioner is such which can be decided if a full-fledged inquiry is held against him under the Rules of 1991. The invocation of the provisions of Rule 8 (2) (b) by the authority of this provision was totally arbitrary. 19. Consequently, the impugned dismissal order dated 14.2.2007, appellate order dated 17.11.2007 and the revisional order dated 12.8.2008 cannot be sustained and are hereby quashed. The invocation of the provisions of Rule 8 (2) (b) by the authority of this provision was totally arbitrary. 19. Consequently, the impugned dismissal order dated 14.2.2007, appellate order dated 17.11.2007 and the revisional order dated 12.8.2008 cannot be sustained and are hereby quashed. The writ petition is allowed and the matter is remitted to the authority to proceed from the stage prior to the passing of the impugned order and conclude the inquiry within a period of six months from the date of the production of a certified copy of this order.